Thursday, March 26, 2009

It would not take much to assure that there were fair criminal trials supported by a truly neutral and independent crime laboratory in Connecticut. But I suspect most folks like the way things are and see little need for change. But none of those folks were responsible for producing the National Academy of Science's recent report on the use of science to investigate crimes.

Entitled Strengthening Forensic Science in the United States: A Path Forward, the 2009 report should be must reading for every judge in the state. Criminal defense lawyers will benefit from it, too: It is a storehouse of information about weaknesses in what we use as evidence. As to prosecutors, well, I suspect more than a few will wish the report were never written.

First, a pet peeve. There is no such thing as forensic science. There is simply the forensic use of science.

The scientific method, that revolutionary force that has set the world a whirring for the past 300 years, is simple: We observe the world, render hypotheses about how things are related. Patient observation and experimentation yield reliable theories on the nature of the physical world. Good science knows the strengths and weaknesses of its particular methods.

What, then, is called forensic science? That's simply a Latinate deceit. Science refers to what can be know. The fora is simply a courtroom. Forensic science is really no new and more reliable version of the core sciences. It is mere applied science. Methods used to investigate the natural world are used in the context of a legal proceeding. The next time you see a witness call himself a forensic scientist, slap him silly. There's no such thing.

Of course, the NAS doesn't go that far. No use stirring verbal hornet's nests when innocent men and women are going to prison based on evidence lawyers and judges, much less juries, do not comprehend. The NAS wants better applied science in the courtroom.

One of the report's more radical proposals is to sever the tie that binds many of the nation's forensic laboratories to law enforcement. There is a subtle bias, the report notes, when an investigator takes his check and his bearings from the needs of law enforcement. Science takes no sides. The truth sometimes convicts and it sometimes sets free.

In Connecticut, the state's forensic laboratory is housed within the same agency as the state police. While its employees profess a willingness to talk to any and all, it is hard to take this seriously. Any law enforcement agency can get testing done by requesting. The same is not true, I suspect of any defendant.

The Connecticut General Assembly can show national leadership quite simply with regard to the state's crime lab. Here's a three-part reform that should be met with open arms by anyone who believes in fair trials.

First, transfer control of the forensic lab from the Department of Public Safety to the Department of Public Health. This is merely an act of administrative fiat. A neutral lab belongs somewhere other than a law enforcement agency. Let it go to the same agency that assures public health. Wrongful convictions kill spirits.

Second, charge any user of the lab the same fee. When New Haven's Police Department, for example, needs a DNA test, charge a flat fee. Charge the same to any defendant asking for it. Those folks without means could apply for an indigency waiver. Indeed, nothing prevents a town from crying poor and asking for such a waiver as well.

Finally, require that the laboratory be managed by a three person panel. One appointee would come be recommended by the Office of the Chief State's Attorney. Another would be recommended by the Public Defender's Office. The final would be appointed by the Legislature's Judiciary Committee. Let the governor appoint an ombudsman to respond to complaints about whether the lab is truly neutral and even-handed.

It's a simple proposal, really. Watch who opposes it: Law enforcement and lab employees They like things just as they are. I wonder why.